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separate defenses. Throughout the law, 31 reference is consistently made to "a defense” or “the defense,” and not the plural, "defenses.” “It shall be a defense,” says the statute in section 1, and "where the answer contains the defense mentioned in section one,” it says in section 2. While it is true that in section 1 the defense is stated to be “that such rent is unjust and unreasonable and that the agreement under which the same is sought to be recovered is oppressive,” it is immediately followed by a reference to the defense in the singular: “But such defense shall not be allowed. . In section 3 the description “unjust, unreasonable and oppressive" is used solely in connection with the presumption concerning the "agreement." "Such

“ agreement shall be presumptively unjust, unreasonable and oppressive,” states the statute. It would thus seem that the characterization “unjust and unreasonable" is used interchangeably as to the "rent" and "agreement."

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Judge Pound of the Court of Appeals, in the opinion in the case of People ex rel. Durham Realty Corporation v. La

says: “The exaction of an unjust and unreasonable rent makes oppressive the agreement under which the same is sought to be recovered.” 33

Applying this declaration to the interpretation of the part of the statutory defense stating, “that the agreement under which the same is sought to be recovered is oppressive,” there seems room for the construction that the statute

31 Chap. 944, Laws of 1920.
32 230 N. Y. 429, 450.
*3 See Klamer Realty Corp, v. Brill, 199 N. Y. Supp. 92.

creates but a single defense, to wit,—that the "rent is unjust and unreasonable" and if it accrues by virtue of an agreement, such agreement is “oppressive,” being made so by “the exaction of an unjust and unreasonable rent.”

The adoption of the statement by the Court of Appeals that rent when unreasonable makes oppressive the agreement leads to a wise and practical interpretation of this statute. If it were otherwise, when could it be said that an agreement of lease is oppressive? It has been held that the landlord's threat, express or implied, that he would exercise his lawful right to regain possession of his premises at the expiration of the term, constitutes no duress, for the reason that duress can never be predicated upon a threat to enforce legal rights by lawful means. 34

The statute sought to prevent the exaction by landlords of unreasonable and unjust rents. This is accomplished by the interpretation given, making oppressive agreements exacting unreasonable rents. It would be intolerable and contrary to the spirit of our institutions, if the tenant were obliged to prove that the agreement was oppressive because of his lack of means and ability to pay the rent exacted. That would mean an inquiry in each case where an agreement has been made, into the amount of a tenant's income and his sources of revenue. The Legislature, we feel certain, did not contemplate nor wish to require any proof of this character.



It has been held that payment of rent under an agreement of lease constitutes a ratification of the agreement which pre

34 Sylvan Mortgage Co. v. Stadler, 115 Misc. 311, 188 N. Y. Supp. 165, reversing 113 Misc. 659, 185 N. Y. Supp. 293, and citing McPherson y, Cox, 86 N. Y. 472, Dunham y, Griswold, 100 N. Y. 224.

vents a tenant from subsequently claiming that he entered into the agreement under duress, but that no ratification of the contract can debar the tenant from interposing the statutory defense that the rent is unreasonable and oppressive. This defense, the courts hold, continues available irrespective of whether there have been payments of rent under the allegedly oppressive lease or not. 35

In the language of Judge Lehman: 36

There is no doubt but that the payment of the first month's rent, several months after the agreement was made, constituted a ratification of the contract which would prevent the tenant from claiming he entered into the agreement under duress. No ratification of the contract, however, can debar the tenant from interposing the defense that the rent is unreasonable and oppressive. Under chapters 944 and 945 of the Laws of 1920, the tenant who pleads this defense does not disaffirm his contract, nor is he obliged to relinquish the benefits that he has received under the contract, and a failure to claim the right granted to him by the statute to continue in possession of the demised premises upon payment of a reasonable rent is not waived by the tenant's failure to use such right at the first opportunity." 87

The fact that the tenant, by pleading this special statutory defense of unreasonableness and oppressiveness, does not disaffirm the contract, and is not obliged to relinquish the benefits that he has received under the contract, should be particularly noted. 38

5 B. & S. Realty Corp. v. Wald, 115 Misc. 195, 187 N. Y. Supp. 436; Resolute Investing Co. v. Freeman, 189 N. Y. Supp. 84; Stewart v. Schattman, 187 N. Y. Supp. 445; Schechter v. Traconis, 189 N. Y. Supp. 144. (All in App. Term, 1st Dept.).

* B. & S. Realty Corp. v. Wald, supra.

* See also, Ulster Court Corp. v. Holdsworth (Mun. Ct., C. of N. Y., 7th Dist., Spiegelberg, J.), February 14, 1921, affirmed on appeal June 22, 1921, but not reported.

** B. & S. Realty Corp. v. Wald, supra,

" 37



It frequently occurs that upon the request or insistence of a tenant and as a condition to his entering into a lease, the landlord is required to and does decorate an apartment for the tenant or makes repairs of a nature involving the expenditure of considerable sums of money. The question arises whether the making of such repairs or the doing of such work estops the tenant from asserting the defense that the rent is unreasonable and oppressive.

The right of a tenant to assert this defense given to him by the statute seems without condition except that he must make a deposit of the proper amount, as provided in subdivision 6 of the statute.39

In the case of B. & S. Realty Corp. v. Wald, in the course of the opinion, Judge Lehman said 40:

"A failure on the part of the tenant to claim the benefit of the statute on the 1st of October could not induce the landlord in any way to change his position to his disadvantage, and therefore creates no estoppel against the tenant."

In that case, however, it did not appear that the landlord was put to any expense in improving the apartment which the tenant had occupied the preceding year. It may very well appear from proven facts in a given case that the landlord was induced to change his position to his disadvantage by the acts or promises of a tenant.

It is not the purpose of these statutes to permit their use as a cloak with which to perpetrate an injustice. Up to the present, the courts appear not to have been called upon

39 Chap. 944, Laws of 1920, as amended by Chap. 434, Laws of 1921.
40 115 Misc. 195, 187 N. Y. Supp. 436.

to pass on this point-at least there is no reported decision. There is, of course, the point of view that it would not do to permit a landlord upon the pretext of making some insignificant repairs, to be able to avoid the effect of the emergency statutes. In this manner the beneficial effects of these laws would be lost to a tenant. The question would probably be one of fact in each case, as to whether a genuine case of estoppel was presented by the evidence.

But whether there is estoppel or not, the failure of the tenant to assert promptly the claim that the agreement is oppressive may be considered by the court or jury as some evidence that in fact the agreement was not oppressive, if thereafter the tenant makes such claim. It is, however, at most, an implied admission on the part of the tenant, and can be given no greater effect than an admission made in any other way.41



It is to be noted that by virtue of the amendment of the law effected by Chapter 434 of the Laws of 1921, § 1, the special statutory defense we are discussing may not be allowed if it appear that the tenant has paid after the commencement of the term and after the amended section took effect, 42 three successive monthly instalments of the rent.

As a result of this amendment, if the tenant has paid three successive instalments of rent under a lease after the term of the lease has commenced, even though the rent may be unreasonable, the statutory defense is not available.

41 B. & S. Realty Corp. v. Wald, 115 Misc. 195, 187 N. Y. Supp. 436 Ulster Court Corp. v. Holdsworth, (Misc. Ct., C. of N. Y., 7th Dist., Feb. 14, 1921), not reported.

42 April 30, 1921.

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